Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 1 of 40 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Transcription

1 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 1 of 40 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY; REBECCA BUCKWALTER; PHILIP COHEN; HOLLY FIGUEROA; EUGENE GU; BRANDON NEELY; JOSEPH PAPP; and NICHOLAS PAPPAS, v. Plaintiffs, No. 1:17-cv-5205 ORAL ARGUMENT REQUESTED DONALD J. TRUMP, President of the United States; HOPE HICKS, White House Acting Communications Director; SARAH HUCKABEE SANDERS, White House Press Secretary; and DANIEL SCAVINO, White House Director of Social Media and Assistant to the President, Defendants. PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT Jessica Ring Amunson (pro hac vice) Tassity S. Johnson (pro hac vice) Jenner & Block LLP 1099 New York Avenue, NW, Suite 900 Washington, DC (202) jamunson@jenner.com Jameel Jaffer (JJ-4653) Katherine Fallow (KF-2535) Carrie DeCell (application for admission forthcoming) Alex Abdo (AA-0527) Knight First Amendment Institute at Columbia University 314 Low Library 535 West 116th Street New York, NY (212) jameel.jaffer@knightcolumbia.org

2 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 2 of 40 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTRODUCTON...1 STATEMENT OF FACTS...4 A. How Twitter works B. Twitter account C. Defendants blocking of the Individual Plaintiffs from account LEGAL STANDARD...11 ARGUMENT...12 I. Defendants blocking of the Individual Plaintiffs violates the First Amendment A. account is subject to the First Amendment B. Defendants are violating the First Amendment by excluding the Individual Plaintiffs from a public forum based on viewpoint account is a designated public forum Defendants blocking of the Individual Plaintiffs is unconstitutional viewpoint discrimination C. Defendants are violating the First Amendment by restricting the Individual Plaintiffs access to generally available government information based on their viewpoints D. Defendants blocking of the Individual Plaintiffs imposes an unconstitutional restriction on their First Amendment right to petition the government for redress of grievances II. The Court has jurisdiction to provide relief in this case A. The Court has jurisdiction to order equitable relief against the President in this case B. Plaintiffs have standing to obtain relief against other Defendants CONCLUSION...33 i

3 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 3 of 40 TABLE OF AUTHORITIES Cases Am. Broad. Cos. v. Cuomo, 570 F.2d 1080 (2d Cir. 1977)... 20, 24 Baumgartner v. United States, 322 U.S. 665 (1944) Bd. of Cty. Comm rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668 (1996) Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853 (1982) BE & K Constr. Co. v. NRLB, 536 U.S. 516 (2002) Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379 (2011)... 25, 26 Boumediene v. Bush, 553 U.S. 723 (2008) Carter v. HealthPort Techs., LLC, 822 F.3d 47 (2d Cir. 2016) Chevron Corp. v. Donziger, 833 F.3d 74 (2d Cir. 2016) City of Madison Joint Sch. Dist. No. 8 v. Wis. Emp t Relations Comm n, 429 U.S. 167 (1976) Clinton v. Jones, 520 U.S. 681 (1997)... 28, 30 Competitive Enter. Inst. v. Office of Sci. and Tech. Policy, 827 F.3d 145 (D.C. Cir. 2016) Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788 (1985)... 17, 18, 21 D Alessandro v. City of N.Y., No cv, 2017 WL (2d Cir. Oct. 17, 2017) Davison v. Loudoun Cty. Bd. of Supervisors, No. 1:16-cv-932, 2017 WL (E.D. Va. July 25, 2017)... passim Denver Area Ed. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727 (1996) Doe 1 v. Trump, No , 2017 WL (D.D.C. Oct. 30, 2017) Elrod v. Burns, 427 U.S. 347 (1976) Forrester v. White, 484 U.S. 219 (1988)... 28, 29 Franklin v. Massachusetts, 505 U.S. 788 (1992)... 30, 31, 32 ii

4 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 4 of 40 Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017), vacated and cert. granted sub nom. Trump v. Int l Refugee Assistance Project, No , 2017 WL (U.S. June 26, 2017)... 15, 31 Jones v. Heyman, 888 F.2d 1328 (11th Cir. 1989) Kentucky v. Graham, 473 U.S. 159 (1985) Kleindienst v. Mandel, 408 U.S. 753 (1972) L.A. Police Dep t v. United Reporting Publ g Corp., 528 U.S. 32 (1999)... 24, 25 Lamb s Chapel v. Ctr. Moriches Union Free School Dist., 508 U.S. 384 (1993) Make The Road by Walking, Inc. v. Turner, 378 F.3d 133 (2d Cir. 2004)... 17, 19, 22 Matal v. Tam, 137 S. Ct (2017)... 20, 23, 24 McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184 (2d Cir. 2007) McMeans v. Obama, No. 11-cv-891, 2011 WL (D. Del. Dec. 1, 2011) Mirabella v. Villard, 853 F.3d 641 (3d Cir. 2017)... 26, 27 Mississippi v. Johnson, 71 U.S. 475 (1866) Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971) Monsky v. Moraghan, 127 F.3d 243 (2d Cir. 1997) Musso v. Hourigan, 836 F.2d 736 (2d Cir. 1988) N.Y. Times v. Sullivan, 376 U.S. 254 (1964) Newdow v. Bush, 355 F. Supp. 2d 265 (2005) Nicholas v. City of New York, No. 15-cv-9592, 2017 WL (S.D.N.Y. Feb. 27, 2017) Nixon v. Fitzgerald, 457 U.S. 731 (1982) Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973)... 29, 32 Packingham v. North Carolina, 137 S. Ct (2017)... 3, 18, 26 Paulsen v. Cty. of Nassau, 925 F.2d 65 (2d Cir. 1991) Perry Educ. Ass n v. Perry Local Educators Ass n, 460 U.S. 37 (1983)... 17, 18 iii

5 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 5 of 40 Pitchell v. Callan, 13 F.3d 545 (2d Cir. 1994) Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) R.O. ex rel. Ochshorn v. Ithaca City Sch. Dist., 645 F.3d 533 (2d Cir. 2011) Raines v. Byrd, 521 U.S. 811 (1997) Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995)... 17, 18, 22, 23 Rossignol v. Voorhaar, 316 F.3d 516 (4th Cir. 2003) S.F. Redevelopment Agency v. Nixon, 329 F. Supp. 672 (N.D. Cal. 1971) Se. Promotions Ltd. v. Conrad, 420 U.S. 546 (1975) Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) Spokeo, Inc. v. Robins, 136 S. Ct (2016) Sullivan v. Met. Trans. Auth. Police Dep t, No. 13 Civ. 7677, 2017 WL (S.D.N.Y. Sept. 13, 2017) Surita v. Hyde, 665 F.3d 860 (7th Cir. 2011) Suskin v. Nixon, 304 F. Supp. 71 (N.D. Ill. 1969) Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996)... 31, 32 U.S. Postal Serv. v. Hustler Magazine, Inc., 630 F. Supp. 867 (D.D.C. 1986) United States v. Burr, 25 F. Cas. 187 (No. 14,694) (CC Va. 1807) United States v. Giordano, 442 F.3d 30 (2d Cir. 2006) United States v. Nixon, 418 U.S. 683 (1974) Universal Church, Inc. v. Universal Life Church/ULC Monastery, No. 14 Civ. 5213, 2017 WL (S.D.N.Y. Aug. 8, 2017) Va. State Board of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976) White v. City of Norwalk, 900 F.2d 1421 (9th Cir. 1990) Youngstown Sheet & Tube Co. v. Sawyer, 535 U.S. 579 (1952)... 29, 31, 32 iv

6 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 6 of 40 Other Authorities Twitter, About, 18 Twitter, Muting Accounts on Twitter, 9 Rules Fed. R. Civ. P Constitutional Provisions U.S. Const. amdt. I v

7 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 7 of 40 INTRODUCTON The President s Twitter has become an important source of news and information about the government, and an important forum for speech by, to, and about the President. The account is akin to a digital town hall, with the President speaking from the podium at the front of the room and assembled citizens responding to him and engaging with one another about the President s statements. In an effort to suppress dissent, the President and his aides are ejecting from this forum blocking the Individual Plaintiffs and other Twitter users who have criticized the President or his policies. 1 This practice is unconstitutional, and this lawsuit seeks to end it. Plaintiffs are entitled to summary judgment. There is no genuine issue of material fact. To the contrary, the parties joint stipulation filed on September 28, 2017 includes the undisputed facts necessary to establish the Court s jurisdiction as well as the appropriateness of declaratory and injunctive relief against President Trump and his aides. The First Amendment applies here because Defendants for official purposes. As the joint stipulation makes clear, White House staff members assist the President in drafting and posting tweets to the account. The President and his aides use the account to make official announcements, defend the President s official decisions and actions, report on the President s meetings with foreign leaders, and promote the administration s positions on health care, immigration, foreign affairs, and other matters. The President s aides have stated that tweets are official statements, and they have cited the tweets in response to official congressional inquiries. The tweets have been treated as official 1 In this brief, Individual Plaintiffs refers to the seven people in this lawsuit who were blocked Plaintiffs refers to all eight plaintiffs listed in the caption, including the Knight First Amendment Institute at Columbia University ( Knight Institute ). 1

8 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 8 of 40 statements by national public officials, public agencies, world leaders, and federal courts. The record thus establishes that Defendants as a tool of governance. See Davison v. Loudoun Cty. Bd. of Supervisors, No. 1:16-cv-932, 2017 WL (E.D. Va. July 25, 2017) (holding that county official used her Facebook page as a tool of governance and that accordingly the account was subject to the First Amendment). Defendants blocking of the Individual Plaintiffs from account violates the First Amendment for several reasons. First, the blocking violates the prohibition against viewpoint-based exclusion of speakers from a designated public forum. The government creates a designated public forum when it opens a space for speech by the public at large without restriction as to subject matter or speaker. This is what Defendants have done here. account is a digital space in which anyone with a Twitter account can respond to and debate the President s statements ( tweets ) in comment threads associated with those tweets. Given the nature of the forum, Defendants concession that they have excluded the Individual Plaintiffs based on viewpoint amounts to a concession that Defendants have violated the Individual Plaintiffs right to speak as well as the Knight Institute s right to hear. Defendants argument that account is government speech mistakes the part for the whole: While the President s tweets are government speech, the millions of comments on his tweets by ordinary citizens are not, and no one would mistake them for it. Again, town halls and open city council meetings supply useful analogies. The mere fact that a forum includes government speech does not convert it to something other than a public forum. 2

9 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 9 of 40 Second, and independent of the public forum analysis, Defendants blocking of the Individual Plaintiffs violates the First Amendment because it restricts their access to generally available government information in retaliation for their criticism of the President. Through his Twitter account, the President makes information about his presidency generally available to anyone who follows him on Twitter. The First Amendment forecloses Defendants from burdening the Individual Plaintiffs access to this otherwise generally available information solely because the Individual Plaintiffs have criticized the President or his policies. Third, and independent of the two claims described above, Defendants conduct violates the Individual Plaintiffs First Amendment right to petition the government for redress of grievances. account is, among other things, a channel through which ordinary citizens can complain about government policy directly to the President and his closest aides. See Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017) (noting importance of social media platforms, and Twitter in particular, as channels through which citizens exercise rights protected by Petition Clause). Plaintiffs do not contend that Defendants are required to make this channel available to the public at large, but having done so, Defendants cannot close it to the Individual Plaintiffs solely because they have criticized the President or his policies. Defendants contention that the Court lacks power to remedy the unconstitutional conduct complained of here is meritless. The President is not above the law, and the notion that the separation of powers requires this Court to turn a blind eye to the President s violations of First Amendment rights turns the separation of powers on its head. Moreover, even if there were merit to Defendants argument that the Court cannot enjoin the President and there is not the Court would still have the authority to grant declaratory relief against the President as well as injunctive and declaratory relief against the President s aides. Those aides include Dan Scavino, 3

10 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 10 of 40 White House Social Media Director and Assistant to the President, who by Defendants admission is actively involved in administering account and has the access necessary to unblock the Individual Plaintiffs. Plaintiffs respectfully request that the Court deny Defendants motion and enter summary judgment in Plaintiffs favor. STATEMENT OF FACTS A. How Twitter works. Twitter is a social media platform with more than 300 million active users worldwide, including some 70 million in the United States. Joint Stipulation ( Stip. ) 13, ECF No The platform s defining feature is interactivity, which it fosters by allowing users to post short messages and to repost or respond to others messages. Id. Users. A Twitter user is an individual who has created an account on the platform. A user can post tweets, generally up to 140 characters in length, to a webpage on Twitter that is attached to the user s account. Tweets can include photographs, videos, and links. Id. 14. A Twitter user must have an account name, or handle, which is symbol followed by a unique identifier and a descriptive name (e.g., Donald J. Trump). Alongside the handle, a user s webpage will display the date the user joined Twitter and a button that invites others to Tweet to the user. (This button is visible only to other Twitter users.) A user s Twitter webpage may also include a short biographical description; a profile picture, such as a headshot; a header image, which appears as a banner at the top of the webpage; the user s location; and other information. Id. 16. Thus, part of the webpage recently looked like this (annotated in red): 4

11 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 11 of 40 Timelines. A Twitter user s webpage displays all tweets generated by the user, with the most recent tweets appearing at the top of the page. This display is known as a user s timeline. When a user posts a tweet, the timeline updates immediately to include that tweet. Anyone who can view a user s Twitter webpage can see the user s timeline. Id. 15. Twitter webpages and their associated timelines are visible to everyone with internet access, including those who are not Twitter users. Although non-users can view users Twitter webpages, however, they cannot interact with users on the Twitter platform. Id. 18. Tweets. An individual tweet comprises the tweeted content (i.e., the message, including any embedded photograph, video, or link), the user s account name (with a link to the user s Twitter webpage), the user s profile picture, the date and time the tweet was generated, and the 5

12 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 12 of 40 number of times the tweet has been replied to ( ), retweeted by ( ), or liked by ( ) other users. Id. 17. Following. Twitter users can subscribe to other users messages by following those users accounts. Users see all tweets posted or retweeted by accounts they are following. This display is labeled Home on Twitter s site, but it is often referred to as a user s feed. Id. 19. Verification. Twitter permits users to establish accounts under their real names or pseudonyms. Users who want to establish that they are who they claim to be can ask Twitter to verify their accounts. When an account is verified, a blue badge with a checkmark appears next to the user s name on his or her Twitter page and on each tweet the user posts. Id. 20. Retweeting. In addition to posting tweets to their followers, Twitter users can retweet i.e., repost the tweets of other users, by posting them directly to their own followers or by quoting them in their own tweets. When a user retweets a tweet, it appears on the user s timeline in the same form as on the original user s timeline, but with a notation indicating that the post was retweeted. Id. 21. Replies and comment threads. A Twitter user can also reply to other users tweets. Generally, a reply can be up to 140 characters in length and can include photographs, videos, and links. A reply appears on the user s timeline under a tab labeled Tweets & replies. The reply may also be viewed from the original user s feed by clicking on the tweet that prompted the reply the reply will appear below the original tweet, along with other replies to the same tweet. Id. 22. A Twitter user can also reply to other replies. A user whose tweet generates replies will see the replies below his or her original tweet, with any replies-to-replies nested below the replies to which they respond. Twitter is called a social media platform in large part because of these comment threads, which reflect multiple overlapping conversations among and across 6

13 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 13 of 40 groups of users. Id. 23. Below is a tweet that prompted tens of thousands of comments, including the four shown below (annotated in red): 7

14 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 14 of 40 Blocking. Users may choose to exclude other users from viewing and responding to their tweets by using Twitter s blocking function. When logged into his or her account, a blocked user cannot see or reply to the blocking user s tweets, view the blocking user s list of followers or followed accounts, or use the Twitter platform to search for the blocking user s tweets. The blocking user will not be notified if the blocked user mentions her; nor will the blocking user see any tweets posted by the blocked user. Id. 28. If the blocked user attempts to follow the blocking user, or to access the Twitter webpage from which the user is blocked, the user will see a message indicating that the other user has blocked her from following the account and viewing the tweets associated with the account. Id. 29. This is an example of a notification from Twitter that a user has been blocked: 8

15 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 15 of 40 Muting. An alternative to blocking a user is to mute him or her. Twitter, Muting Accounts on Twitter, 2 A user who mutes a follower does not see the tweets or replies of the muted account, but the follower is still able to view and reply to the muting user s tweets. Id. The reply tweets of the muted person will appear in comment threads and be visible to other followers, but they will not be visible to the account holder. Id. B. Twitter account. With the assistance of his White House staff, President Trump operates and oversees a verified Twitter account with the Id. 9, 12, 39. Defendant Dan Scavino, the White House Social Media Director and Assistant to the President, id. 12, assists President Trump in operating account, including by drafting and posting tweets to the account. Id. 39. Other White House aides also suggest content tweets. Id. Mr. Scavino has access to account, including the access necessary to block and unblock individuals from account. Id. 12. Since President Trump s inauguration in January 2017, the President and his aides have used account as a channel for communicating with the public about his presidency. Id The account is used by the President and his aides to make formal announcements, defend the President s official actions, report on meetings with foreign leaders, and promote the administration s positions on health care, immigration, foreign affairs, and other 2 See Stip. at 3 n.2 ( The parties agree that the Court may take judicial notice of the information published in the Using Twitter and Policies and reporting guides available on Twitter s Twitter Support webpage, ). 3 The President and his aides tweeted from account 1,556 times between Inauguration Day and September 25, All of the tweets are reproduced in an exhibit to the parties joint stipulation. Id. Ex. A. 9

16 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 16 of 40 matters. Id. 38. The President has described his use of Twitter as MODERN DAY PRESIDENTIAL, his aides have stated that tweets should be understood as official statements by the President of the United States, id. 37, and the tweets have been treated as such by the National Archive and Records Administration and federal courts. Id. 40. As of the date of the joint had 35 million followers, id. 36, a number which continues to grow. See twsrc%5egoogle%7ctwcamp%5eserp%7ctwgr%5eauthor (reflecting over 41 million followers as of November 3, 2017). Each of the President s tweets generates thousands of replies some of which generate hundreds or thousands of replies in turn. Stip C. Defendants blocking of the Individual Plaintiffs from account. Plaintiffs include seven individuals who have been blocked from account because of opinions they expressed in replies to the President s tweets about official government matters. For example, Rebecca Buckwalter, a writer and political consultant, was blocked by the President on June 6, That morning, the President tweeted, Sorry folks, but if I would have relied on the Fake News of CNN, NBC, ABC, CBS washpost or nytimes, I would have had ZERO chance of winning WH. Ms. Buckwalter was blocked after she tweeted in reply, To be fair you didn t win the WH: Russia won it for you. Id. 46. Eugene Gu, a surgical resident at Vanderbilt University Medical Center, was blocked by the President on June 18, 2017, after Dr. Gu responded to a tweet by President Trump discussing his approval rating by tweeting, Covfefe: The same guy who doesn t proofread his Twitter handles the nuclear button. Id. 49. Police officer Brandon Neely was blocked by the President on June 12, 2017, after he responded to a tweet by President Trump relating to the opening of a new coal mine by 10

17 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 17 of 40 tweeting, Congrats and now black lung won t be covered under #TrumpCare. Id. 50. And Joseph Papp, an anti-doping advocate and author, was blocked by the President on June 3, 2017, after he replied to the President s tweet of his weekly presidential address with a pair of linked tweets stating, Greetings from Pittsburgh, Sir, and Why didn t you attend your #PittsburghNotParis rally in DC, Sir? #fakeleader. Id. 51. As a result of the President s blocking, Individual Plaintiffs cannot view the President s tweets, reply directly to those tweets, or view the comment threads associated with those tweets while they are logged into their Twitter accounts. Id. 54. They can access the President s tweets only by logging out of their accounts and using a search engine to view timeline, by using a private browsing window (such as an incognito browsing window), or by logging into an account that has not been blocked. Id. 55, 56. All of these workarounds require the Individual Plaintiffs to expend additional time and effort in order to read and respond to the President s tweets that is, to expend time and effort that they would not have to expend if they had not criticized the President or his policies. Id. 56, LEGAL STANDARD Summary judgment is appropriate when the moving party shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is material when it might affect the outcome of the suit under governing law, McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotation marks and citation omitted), and [a] genuine dispute exists if a reasonable factfinder could decide in the nonmoving party s favor, Universal Church, Inc. v. Universal Life Church/ULC Monastery, No. 14 Civ. 5213, 2017 WL , at *4 (S.D.N.Y. Aug. 8, 2017). When crossmotions for summary judgment are made the standard is the same; each motion must be 11

18 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 18 of 40 considered independently of the other and, when evaluating each, the court must consider the facts in the light most favorable to the non-moving party. Sullivan v. Met. Trans. Auth. Police Dep t, No. 13 Civ. 7677, 2017 WL , at *5 (S.D.N.Y. Sept. 13, 2017). ARGUMENT I. Defendants blocking of the Individual Plaintiffs violates the First Amendment. A. account is subject to the First Amendment. The undisputed facts establish that Defendants use account as an instrument of governance. The account is accordingly subject to the First Amendment. To begin, the main webpage bears all the indicia of an official account. The page is registered to Donald J. Trump, 45th President of the United States of America, Washington, D.C. Stip. 35. Since inauguration, the account s header photographs have been images associated with the President s official duties. They have shown the President signing an executive order in the Oval Office, delivering official remarks at the White House and other locations, and meeting with the Pope, heads of state, and other foreign dignitaries. Id. 35 & Ex. B. The President and his aides treat account as interchangeable with the other official White House Twitter accounts. For example, account directs Twitter users to Follow for the and his Administration, and tweets are frequently retweeted (and vice versa). Id. 37. Tweets since the President s inauguration overwhelmingly concern his official duties and decisions. 4 Defendants routinely use the account to announce 4 Defendants cite a handful of instances in which the President used account to post more personal information, Gov t Br. at 13 n.7, but even a cursory review of 12

19 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 19 of 40 official decisions, offer official comment on news developments, describe the administration s foreign policy decisions, and promote the administration s policies. Id. 38. For example: On June 7, 2017, the White House 5 used the account to announce for the first time that the President would nominate Christopher Wray for the position of FBI Director. Id. On June 22, 2017, the White House used the account to declare that the President did not possess tapes of conversations with former FBI Director James Comey. Id. On July 26, 2017, the White House used the account to announce that the President would ban transgender individuals from serving in the military. Id. 41. On July 28, 2017, the White House used the account to inform the public that the President had fired his first chief of staff, Reince Priebus, and replaced him with then Secretary of Homeland Security General John F. Kelly. Id. Ex. A at 22. On August 7, 2017, the White House used the account to inform the public about the President s discussions with the South Korean president concerning North Korea s nuclear program. Id. Ex. A at 19. On September 5, 2017, the White House used the account to announce the President s decision to allow[] Japan & South Korea to buy a substantially increased amount of highly sophisticated military equipment from the United States. Id. Ex. A at 9. On September 21, 2017, the White House used the account to announce a new executive order aimed at denuclearization of North Korea. Id. Ex. A at 2. The President and his aides have described the account as an official one. For example, on July 2, 2017, the President tweeted, My use of social media is not Presidential it s MODERN DAY PRESIDENTIAL. Id. 37. On June 6, 2017, then White House Press Exhibit A to the joint stipulation shows that the President has used the account for such purposes only very rarely. 5 Defendants concede that Mr. Scavino and other unnamed White House aides assist in drafting tweets and administering account. Stip. 12, 39. Plaintiffs attribute tweets to the White House because it is not clear which specific individuals were involved in drafting or posting any particular tweet. 13

20 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 20 of 40 Secretary Sean Spicer stated at a press conference that President Trump s tweets should be considered official statements by the President of the United States. Id. Defendant Scavino equally as channels through which President Donald J. Trump... [c]ommunicat[es] directly with you, the American people! Id. The White House also responded to a request for official White House records from the House Permanent Select Committee on Intelligence by referring the Committee to the President s statement made on Twitter on June 22, Id. The participation of White House staff in the day-to-day operation of account is further evidence that the account is being used for official purposes. Defendant Scavino assists President Trump in operating account, including by drafting and posting tweets to the account. Id. 39; see also id. 12 ( Mr. Scavino posts messages on behalf of President Trump and other social media accounts, ). President Trump also sometimes dictates tweets to Mr. Scavino, who then posts them on Twitter, and President Trump and/or Mr. Scavino sometimes retweet the tweets of those who participate in comment threads associated with account. Id. 39. Official staff involvement is not limited to Mr. Scavino, as [o]ther White House aides besides Mr. Scavino will, in certain instances, also suggest content tweets. Id. And Mr. Scavino has access to account, including the access necessary to block and unblock individuals from account. Id. 12. Federal agencies and federal courts have treated account as a source of official government statements. The National Archives and Records Administration has advised the White House that the President s tweets must be preserved as official records 14

21 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 21 of 40 under the Presidential Records Act. Id. 40. The Ninth Circuit cited one of the President s tweets in striking down an executive order restricting immigration. Hawaii v. Trump, 859 F.3d 741, 773 n.14 (9th Cir. 2017), vacated and cert. granted sub nom. Trump v. Int l Refugee Assistance Project, No , 2017 WL (U.S. June 26, 2017) (noting the White House Press Secretary had indicated that the President s tweets should be treated as official statements); Stip. 40. A district court recently relied on the White House s tweets in striking down the President s proposed ban on transgender individuals from military service. Doe 1 v. Trump, No , 2017 WL , at *7 (D.D.C. Oct. 30, 2017) (describing tweets as the President s statement[s] via Twitter ). Against this background, it is plain that account is being used as an instrument of governance, and accordingly that it is subject to the First Amendment. Davison v. Loudoun County Board of Supervisors, 2017 WL , is instructive. That case presented the question whether the First Amendment applied to a county official s Facebook page. The court considered whether the Facebook page possessed the requisite nexus with [her] public office to be fairly attributable to the government. Id. at *6 (quoting Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003)). The official argued that her Facebook page was personal, not official, because she had created it before assuming office and occasionally posted personal content. The court disagreed, finding that the official used the Facebook page as a tool of governance. Id. at *7. The court noted that the official had used government resources (including her staff) to administer the page; that she had used the page to keep her constituents abreast of her activities as Chair and of important events in local government ; that county newsletters directed constituents to the page; and that the official had made efforts to swathe the... page in the trappings of her office. Id. 15

22 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 22 of 40 All of the indicia of state action that the court identified in Davison are present here. As in Davison, account is properly understood as an official account subject to the First Amendment. Defendants arguments to the contrary are unpersuasive. Defendants emphasize that the President established account before he became President, Gov t Br. at 12, but that is not dispositive. The appropriate inquiry is functional rather than formalistic. Thus, the Second Circuit has made clear that there is no bright line test for distinguishing personal pursuits from activities taken under color of law. Instead, courts look to the nature of the officer s act, not simply to whether the officer is on or off duty or using private or government property. Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994); see Monsky v. Moraghan, 127 F.3d 243, 246 (2d Cir. 1997) (judge acted under color of law by bringing his dog to the clerk s office, where it aggressively nuzzled under women s skirts); see also United States v. Giordano, 442 F.3d 30, 43 (2d Cir. 2006) (Sotomayor, J.). 6 The crucial fact here is that, since the President s inauguration, the President and his staff have used account almost exclusively for official purposes. Contrary to Defendants suggestion, this is not a situation where the President has made an isolated official statement in an otherwise personal or private setting. Gov t Br. at 13. Instead, the President and his aides operate account as a complement to (or substitute for) other official communications channels, including the White House s other Twitter Moreover, Defendants decision to block the Individual Plaintiffs was based on the Individual Plaintiffs responses to the President s tweets about official matters. 6 In analogous circumstances, the D.C. Circuit has held that an agency official may not avoid the requirements of the Freedom of Information Act by using a private system for official communications. Competitive Enter. Inst. v. Office of Sci. and Tech. Policy, 827 F.3d 145, 149 (D.C. Cir. 2016). 16

23 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 23 of 40 In this context, Defendants cannot avoid the constraints of the First Amendment. Cf. Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (off-duty police officers acted under color of law when they seized all copies of local newspaper in retaliation for previous criticism of their fitness for office); see also Davison, 2017 WL , at *8 (holding that, even assuming the specific act of banning Plaintiff from the Chair Phyllis J. Randall Facebook Page can be analyzed separately, this likewise arose out of public, not personal, circumstances (quoting Rossignol, 316 F.3d at 524)). B. Defendants are violating the First Amendment by excluding the Individual Plaintiffs from a public forum based on viewpoint. 1. account is a designated public forum. [A] public forum may be created by government designation of a place or channel of communication for use by the public at large for assembly and speech. Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 802 (1985); see also Perry Educ. Ass n v. Perry Local Educators Ass n, 460 U.S. 37, 45 (1983); Make The Road by Walking, Inc. v. Turner, 378 F.3d 133, (2d Cir. 2004). In determining whether government officials have created a designated public forum, courts consider the forum s compatibility with expressive activity and whether the government s overall policy and past practice shows that the forum is intended to be used for speech by the public. See Paulsen v. Cty. of Nassau, 925 F.2d 65, 69 (2d Cir. 1991); see also Cornelius, 473 U.S. at 802. account is a designated public forum. There is no question that the forum at issue here is compatible with expressive activity the entire purpose of a Twitter account is to facilitate speech. The account is a metaphysical space, in the language of the Supreme Court, Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 830 (1995), in which the President speaks and members of the public respond to, and engage with one another 17

24 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 24 of 40 about, those statements. See id. (applying public forum analysis to student newspaper funding); see Perry Educ. Ass n, 460 U.S. at (school mail system); Cornelius, 473 U.S. at 801 (charitable contribution program). The forum thus includes speech by the President as well as speech by ordinary citizens in the same way that a town hall meeting ordinarily encompasses speech by government officials as well as speech by the assembled public. That the White House purposefully opened this forum to speech by the general public is evidenced by the conduct and statements of the President and his aides, and by their decision to use Twitter, an inherently interactive platform. The President and his aides regularly retweet the tweets of supporters who have replied evidence that they are attentive to the reply tweets in the comment threads. E.g., Stip. Ex. A. at 3 4, 9, 13, 20. (That Defendants have blocked the Individual Plaintiffs for their replies to the President s tweets is further evidence that Defendants are attentive to the comment threads.) Defendants elected to use an interactive platform, and they make extensive use of the platform s interactive features. It bears emphasis that the defining feature of Twitter is its facilitation of real-time interaction. See Twitter, About, As the Supreme Court emphasized in Packingham, social media platforms like Twitter offer perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard, in part because these platforms permit citizens to engage with [their elected representatives] in a direct manner. Packingham, 137 S. Ct. at The decision of the President and his aides to use Twitter, specifically, to communicate with the public is powerful evidence of an intent to create a forum open to speech by the public at large. The White House s overall policy and practice relating to account likewise evidences such an intent. The account is accessible to anyone with a Twitter account without regard to political affiliation or any other limiting criteria. Stip. 36. Defendants 18

25 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 25 of 40 have not published any rule or policy purporting to restrict, by form or subject matter, the speech of those who participate in the forum. Id. Nor have they sought to limit the forum to specific classes of speakers based on their status e.g., to the President s family, friends, or business colleagues. They have permitted anyone who wants to follow the account to do so. Over forty million Twitter users now follow it. The only users who cannot participate in the forum are those whom the President and his aides have selectively blocked. 7 Again, account functions like a digital town hall meeting one in which the President stands at the front of the room and assembled citizens respond to his statements and engage with each other about those statements. The courts have long recognized that these types of meetings constitute designated public forums. See, e.g., Surita v. Hyde, 665 F.3d 860, 869 (7th Cir. 2011) (expressing no doubt that audience time during... city council meetings constituted a designated public forum); White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990) ( City Council meetings... where the public is afforded the opportunity to address the Council[] are the focus of highly important individual and governmental interests.... [S]uch meetings, once opened, have been regarded as public forums, albeit limited ones. ); Jones v. Heyman, 888 F.2d 1328, 1331 (11th Cir. 1989) ( [T]he city commission designated their meeting a public forum when the commission intentionally opened it to the public and permitted public discourse on agenda items. ); see also Musso v. Hourigan, 836 F.2d 736, 742 (2d Cir. 1988) (noting that public speech is usually allowed at an open school board meeting); cf. City of Madison Joint Sch. Dist. No. 8 v. Wis. Emp t Relations Comm n, 429 U.S. 167, Because Defendants have opened account to the general public without any limiting criteria, the account is properly characterized as a designated public forum rather than a limited public forum. See R.O. ex rel. Ochshorn v. Ithaca City Sch. Dist., 645 F.3d 533, 539 (2d Cir. 2011). The type of forum is not dispositive in this case, however, because viewpoint discrimination is impermissible even in limited and nonpublic forums. See Make the Road by Walking, 378 F.3d at

26 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 26 of 40 (1976) (holding that government could not exclude people from open school board meetings based on viewpoint). Defendants argument that account is government speech, Gov t Br. at 14 17, is misguided. The government speech doctrine holds that government officials need not maintain viewpoint neutrality when they articulate the government s policies. See, e.g., Matal v. Tam, 137 S. Ct. 1744, 1757 (2017). That principle plainly applies to the President s tweets. It does not, however, apply to the comment threads, in which thousands of ordinary citizens respond to the President and engage with one another. The comment threads are not government speech, and no one would mistake them for it. Cf. Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 472 (2009) (privately donated monuments displayed by city are meant to convey and have the effect of conveying a government message, and they thus constitute government speech ). The mere fact s tweets constitute government speech does not mean that the comment threads associated with his tweets are something other than a public forum. Indeed, every city council and town hall meeting includes government speech. In addition, Defendants miss the point when they suggest that account is not a public forum because the President and his aides have opted to use a privately run platform. See Gov t Br. at 20. The public forum doctrine is not inapplicable simply because the government uses private rather than public property to establish a space for expression. See, e.g., Se. Promotions Ltd. v. Conrad, 420 U.S. 546, 555 (1975) (holding that a privately owned theater leased by a city was a public forum); Am. Broad. Cos. v. Cuomo, 570 F.2d 1080, 1083 (2d Cir. 1977) (applying public forum doctrine to private campaign headquarters); Davison, 2017 WL , at *10 (applying public forum analysis to county official s Facebook page); see 20

27 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 27 of 40 also Denver Area Ed. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 792 (1996) (Kennedy, J., concurring in part) (public fora are not limited to property owned by the government ); Cornelius, 473 U.S. at 801 (noting that public forum analysis applies to public property or private property dedicated to public use ). Defendants last line of defense to the public forum claim that the President has a right not to hear from critics, Gov t Br. at 17 is exactly backwards. The courts have repeatedly recognized our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and they have repeatedly observed that this debate may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. N.Y. Times v. Sullivan, 376 U.S. 254, 270 (1964); see also Monitor Patriot Co. v. Roy, 401 U.S. 265, 274 (1971); Baumgartner v. United States, 322 U.S. 665, (1944). The suggestion that public officials enjoy a right to insulate themselves from criticism of their actions and policies is incorrect. Moreover, Defendants argument that by blocking the Individual Plaintiffs and other critics the President is merely select[ing] the information he consumes and the users with whom he wants to interact, Gov t Br. at 17, mischaracterizes the implications of Defendants conduct. By blocking the Individual Plaintiffs, the President and his aides do not merely insulate the President from viewpoints to which he would prefer not to be exposed. They also prevent the Individual Plaintiffs from viewing the President s tweets, replying directly to those tweets, or viewing the comment threads associated with those tweets while they are logged into their Twitter accounts. Stip Blocking also 8 Defendants argue that there is no injury because [a] blocked user can still post in comment threads. Gov t Br. at 6. However, this argument overlooks that a blocked user cannot reply only to those who reply to him. Stip The difference is significant. Id. 56 ( [S]ome of the Plaintiffs have stopped replying to 21

28 Case 1:17-cv NRB Document 43 Filed 11/03/17 Page 28 of 40 interferes with the ability of Plaintiff Knight Institute and the public to read the Individual Plaintiffs critical replies in the context of the public discourse taking place in those comment threads Defendants blocking of the Individual Plaintiffs is unconstitutional viewpoint discrimination. The First Amendment forecloses the government from excluding individuals from a designated public forum based on viewpoint. See, e.g., Rosenberger, 515 U.S. at 828, ( It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys, and the government is forbidden from engaging in viewpoint discrimination even when the... public forum is one of its own creation ); Make The Road by Walking, 378 F.3d at 143 (explaining that viewpoint discrimination is prohibited by the First Amendment even in limited and non-public forums); Davison, 2017 WL , at *10 (same). Here, there is no dispute that Defendants blocked the Individual Plaintiffs because of their viewpoints. Moreover, the record makes clear that the injury to Plaintiffs speech rights is tangible and real. As a result of the blocking, the Individual Plaintiffs cannot read or respond to replies tweets altogether, while others reply less frequently than if they had not been blocked. ). 9 Defendants actions also violate the First Amendment rights of the Knight Institute to receive the dissenting speech blocked by Defendants. See, e.g., Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982) (plurality opinion); Kleindienst v. Mandel, 408 U.S. 753, (1972). Contrary to Defendants argument, Gov t Br. at 5 7, the Knight Institute has standing to assert a First Amendment claim because it has suffered a particularized injury injury to its right to receive information. See Va. State Board of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, (1976) (holding that prescription drug consumers had standing to challenge state restriction on drug advertising as violating their right to receive information). The fact that an injury may be suffered by a large number of people does not of itself make that injury a nonjusticiable generalized grievance. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 n.7 (2016). Nor is there any merit to Defendants suggestion that the Knight Institute has not adequately alleged that it reads the comment threads That fact can be inferred from the fact that the Knight Institute Stip